Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Fifth : Of the Antient English Tenures
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Chapter the fifth.
Of the antient ENGLISH TENURES.
In this chapter we fhall take a fhort view of the antient tenures of our Englifh eftates, or the manner in which lands, tenements, and hereditaments might have been holden; as the fame ftood in force, till the middle of the laft century. In which we fhall eafily perceive, that all the particularities, all the feeming and real hardfhips, that attended thofe tenures, were to be accounted for upon feudal principles and no other; being fruits of, and deduced from, the feudal policy.
Almost all the real property of this kingdom is by the policy of our laws fuppofed to be granted by, dependent upon, and holden of fome fuperior or lord, by and in confideration of certain fervices to be rendered to the lord by the tenant or poffeffor of this property. The thing holden is therefore ftiled a tenement, the poffeffors thereof tenants, and the manner of their poffeffion a tenure. Thus all the land in the kingdom is fuppofed to be holden, mediately or immediately, of the king; who is ftiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior perfons, became alfo lords with refpect to thofe inferior perfons, as they were ftill tenants with refpect to the king; and, thus partaking of a middle nature, were called mefne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was faid to hold
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of A, and A of the king; or, in other words, B held his lands immediately of A, but mediately of the king. The king therefore was ftiled lord paramount; A was both tenant and lord, or was a mefne lord; and B was called tenant paravail, or the loweft tenant; being he who is fuppofed to make avail, or profit, of the land
a. In this manner are all the lands of the kingdom holden, which are in the hands of fubjects: for, according to fir Edward Coke
b, in the law of England we have not properly allodium; which, we have feen
c, is the name by which the feudifts abroad diftinguifh fuch eftates of the fubject, as are not holden of any fuperior. So that at the firft glance we may obferve, that our lands are either plainly feuds, or partake very ftrongly of the feudal nature.
All tenures being thus derived, or fuppofed to be derived, from the king, thofe that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the moft honourable fpecies of tenure, but at the fame time fubjected the tenants to greater and more burthenfome fervicves, than inferior tenures did
d. This diftinction ran through all the different forts of tenure, of which I now proceed to give an account.
I. There feem to have fubfifted among our anceftors four principal fpecies of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the feveral fervices or renders, that were due to the lords from their tenants. The fervices, in refpect of their quality, were either free or bafe fervices; in refpect of their quantity and the time of exacting them, were either certain or uncertain. Free fervices fuch as were not unbecoming the character of a foldier, or a free-
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a 2 Inft. 296.
b 1 Inft. L.
c pag. 47.
- In the Germanic conftiturion, the electors, the bifhops, the fecular princes, the imperial cities, &c, which hold directly from the emperor, are called the immediate ftates of the empire; all other landholders being denominated mediate ones. Mod. Un. Hift. xlii. 61.
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man, to perform; as to ferve under his lord in the wars, to pay a fum of money, and the like. Bafe fervices were fuch as were fit only for peafants, or perfons of a fervile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain fervices, whether free or bafe, were fuch as were ftinted in quantity, and could not be exceeded on any pretence; as, to pay a ftated annual rent, or to plough fuch a field for three days. The uncertain depended upon unknown contingencies; as to do military fervice in perfon, or pay an affeffment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free fervices: or to do whatever the lord fhould command; which is a bafe or villein fervice.
From the various combinations of thefe fervices have arifen the four kinds of lay tenure which fubfiftd in England, till the middle of the laft century; and three of which fubfift to this day. Of thefe Bracton (who wrote under Henry the third) feems to give the cleareft and moft compendious account, of any author antient or modern
e; of which the following is the outline or abftract
f. “Tenements are of two kinds, frank-tenement, and “villenage. And, of frank-tenements, fome are held freely in “confideration of homage and knight-fervice; others in free-focage “with the fervicve of fealty only.” And again
g, “of villenages “fome are pure, and others privileged. He that holds in pure “villenage fhall do whatfoever is commanded him, and always be “bound to an uncertain fervice. The other king of villenage is “called villein-focage; and thefe villein-focmen do villein fervices, “but fuch as are certain and determined.” Of which the fenfe feems to be as follows: firft, where the fervice was free, but uncertain, as military fervice with homage, that tenure was called
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e l. 4. tr. 1. c. 28.
- Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et fervitio militari; aliud in libere focagio cum fidelitate tantum. §. I.
- Villenagiorum aliud purum, alium privilegiatum. 2ui tenet in puro villenagio faciet quiequid ei praeceptum fuerit, et femper tenobitur ad incerta. Aliud genus villenagii di itur villanum focagium; et hujufmodi villain focmanni – villana faciunt fervitia, fed certa et determinate. §. 5.
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the tenure in chivalry, per fervitium militare, or by knight-fervice. Secondly, where the fervice was not only free, but alfo certain, as by fealty only, by rent and fealty, &c, that tenure was called liberum focagium, or free focage. Thefe were the only free holdings or tenements; the others were villenous or fervile: as, thirdly, where the fervice was bafe in it's nature, and uncertain as to time and quantity, the tenure was purum villenagium, abfolute or pure villenage. Laftly, where the fervice was bafe in it's nature, but reduced to a certainty, this was ftill villenage, but diftinguifhed from the other by the nme of privileged villenage, villenagium privilegiatum; or it might be ftill called focage (from the certainty of it's fervices ) but degraded by their bafenefs into the inferior title of villanum focagium, villein-focage.
I. The firft, moft univerfal, and efteemed the moft honourable fpecies of tenure, was that by knight-fervice, called in Latin fervitium militare, and in law French chivalry, or fervice de chivaler, anfwering to the fief d' haubert of the Normans
h, which name is expreffly given it by the mirrour
i. This differed in very few points, as we fhall prefently fee, from a pure and proper feud, being entirely military, and the genuine effect of the feudal eftablifhment in England. To make a tenure by knight-fervice, a determinate quantity of land was neceffary, which was called a knight's fee, feodum militare; the value of which, not only in the reign of Edward II
k, but alfo of Henry II
l, and therefore probably at it's original in the reign of the conqueror, was ftated at 20 l. per annum and a certain number of thefe knight's fees were requifite to make up a barony. And he who held this proportion of land to the wars for forty days in every year, if called upon: which attendance was his reditus or return, his rent or fervice, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and fo in proportion
m. And there is reafon to apprehend, that this fer-
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h Spelm. Gloff. 219.
i c. 2. §. 27.
k Stat. de milit. 1. Edw. II. Co. Litt. 69.
l Glanvil. l.9. c. 4.
m Litt. § 95.
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vice
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vice was the whole that our anceftors meant to fubject themfelves to; the other fruits and confequences of this tenure being fraudulently fuperinduced, as the regular (though unforefeen) appendages of the feudal fyftem.
This tenure of knight-fervice had all the marks of a ftrict and regular feud: it was granted by words of pure donation, dedi et conceffi
n; was transferred by inveftiture or delivering corporal poffeffion of the land, ufually called livery of feifin; and was perfected by homage and fealty. It alfo drew after it thefe feven fruits and confequences, as infeparably incident to the tenure in chivalry; viz. aids, relief, primer feifin, wardfhip, marriage, fines for alienation, and efcheat: all which I fhall endeavour to explain, and fhew to be of feudal original.
I. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and diftrefs
o; but in procefs of time they grew to be confidered as a matter of right, and not of difcretion. Thefe aids were principally three: firft, to ranfom the lord's perfon, if taken prifoner; a neceffary confequence of the feudal attachment and fidelity; infomuch that the neglect of doing it, whenever it was in the vafal's power, was, by the ftrict rigour of the feudal law, an abfolute forfeiture of his eftate
p. Secondly, to make the lord's eldeft fon a knight; a matter that was formerly attended with great ceremony, pomp, and expenfe. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms
q: the intention of it being to breed up the eldeft fon, and heir apparent of the feignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldeft daughter, by giving her a fuitable portion: for daughters' portions were in thofe days extremely ftender; few lords being able to fave much out of their
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n Co. Litt. 9.
- Auxilia fiunt de gratia et non de jure, -cum dependeant ex gratia tenentium et non ad voluntatem dominorum. Bracton. l. 2. tr. I.
p Feud. l. 2. t. 24.
q 2 Inft. 233.
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income
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income for this purpofe; nor could they acquire money by other means, being wholly converfant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this, or any other incumbrances. From bearing their proportion to thefe aids no rank or profeffion was exempted: and therefore even the monafteries, till the time of their diffolution, contributed to the knighting of their founder's male heir (of whom their lands were holden) and the marriage of is female defcendants
r. And one cannot but obferve, in this particular, the great refemblance which the lord and vafal of the feodal law bore to the patron and client of the Roman republic; between whom alfo there fubfifted a mutual fealty, or engagement of defence and protection. With regard to the matter of aids, there were three which were ufually raifed by the client ; viz. to marry the patron's daughter; to pay his debts; and to redeem his perfon from captivity
s.
BUT befides thefe antient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts, (probably in imitation of the Romans) and aids to enable him to pay aids or reliefs to his fuperior lord; from which laft indeed the king's tenants in capite were, from the nature of their tenure, excufed, as they held immediately of the king who had no fuperior. To prevent this abufe, king John's magna carta
t ordained, that no aids be taken by the king without confent of parliament, nor in any wife by inferior lords, fave only the three antient ones above- mentioned. But this provifion was omitted in Henry III's charter, and the fame oppreffions were continued till the 25 Edw. I; when the ftatute called confirmatio chartarum was enacted; which in this refpect revived king John's charter, by ordaining that none but the antient aids fhould be taken. But though the fpecies of aids was thus reftrained, yet the quantity
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| r Philips's life of Pole. I. 223. |
|
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s Erat autem bacc inter utrofque officiorum viciffitudo,-ut clients ad collocandas fenatorum filias de fuo conferrent; in atis alieni diffolutionem gratuitam pecuniam crogarent; et abboftibus in bello capros redimerent. Paul. Manutius de fenatu Romano.
c . i.
t cap . 12. 15.
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of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords fhould be reafonable
u ; and that the aids taken by the king of his tenants in capite fhould be fettled by parliament
w. But they were never completely afcertained and adjufted till the ftatute Weftm. 1.3 Edw. 1. c. 36. which fixed the aids of inferior lords at twenty fhillings, or the fuppofed twentieth part of every knight's fee. For making the eldeft fon a knight, or marrying the eldeft daughter; and the fame was done with regard to the kin's tenants in capite by ftatute 25 Edw. III. c 11. The other aid, for ranfom of the lord's perfon, being not in it's nature capable of any certainty, was therefore never afcertained.
2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or compofition with the lord for taking up the eftate, which was lapfed or fallen in by the death of the laft tenant. But, though reliefs had their original while feuds were only life-eftates, yet they continued after feuds became hereditary; and were therefore looked upon, very juftly, as one of the greateft grievances of tenure: efpecially when, at the firft, they were merely arbitrary and at the will of the lord; ofthat, if he pleafed to demand an exorbitant relief, it was in effect to difinherit the heir
x . The Englifh ill brooked this confequenceof their new adopted policy; and therefore William the conqueror by his laws
y afcertained the relief, by directing (in imitation of the Danifh heriots) that a certain quantity of arms and habiliments of war fhould be paid by the earls, barons, and va-vafours refpectively; and, if the latter had no arms, they fhould pay 100 s. William Rufus broke through this compofition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws; thereby in effect obliging every heir to new-purchafe orredeem his land
z : but his brother Henry 1 by the charter before- mentioned reftored his father's law; and ordained, that the relief
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ucap. 15.
w 1bid. 14.
x Wright. 99.
y C. 22, 23, 24.
z 2 Roll. Abr. 514.
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To be paid fhould be according to the law fo eftablifhed, and not an arbitrary redemption
a. But afterwards, when, by an ordinance in 27 Hen. II. Called the affife of arms, it was provided that every mans, armour fhould defcend to his heir, for defence of the realm; and it thereby became impracticable to pay thefe acknowlegements in arms, according to the laws of the conqueror, the compofition was univerfally accepted fo 100 s. for every kinght's fee; as we find it ever after eftablifhed.
b But it muft be remembered, that this relief was only then payable, if the heir at the death of his anceftor had attained his full age of one and twenty years.
3. PRIMER feifin was a feodal burthen, only incident to the king's tenants in capite, and not to thofe who held of inferior or mefne lords. It was right which the king had, when any of his tenants in capite died feifed of a knight's fee, to receive of the heir ( provided he were of full age) one whole year's profits of the lands, if they were in immediate poffeffion ; and half a year's profits, if the lands were in reverfion expectant on an eftate for life
c. This feems to be little more than an additional relief : but grounded upon this feodal reafon; that, by the antient law of feuds, immediately upon a death of a vafal the fuperior was in titled to enter and take feifin or poffeffion of the land, by way of protection againft intruders, till the heir appeared to claim it, and receive inveftiture: and, for the time the lord fo held it, he was entitled to take the profits; and unlefs the heir claimed within a year and day, it was by the ftrict law a forfeiture
d . This practice however feems not to have long obtained in England, if ever, with regard to tenures under inferior lords; but, as to the king's tenures in capite, this prima feifina was expreffly declared, under Henry III and Edward II, to belong to the king by prerogative, in contradiftinction to other lords
c. And the king was intitled to enter and receive the whole profits of the land, till livery was
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a “ Haeres non redimet terram fuam, ficut “ faciebat tempore fratris mei, fed legitima et “ jufta relavatione rekuabit cam.” ( Text. Reffens. Cap.34.)
b Glanv. 1. 9. c. 4. Litte. §. 112.
c Co. Litt.77.
d Fend. 1. 2. 1. 24.
e State. Marlbr. C. 16. 17 Edw.11. c.3.
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fued ;
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fued ; which fuit being commonly within a year and day next after the death of the tenant, therefore the king ufed to take at an average the firft fruits, that is to fay, one year's profits of the land
f. And this afterwards gave a handle to the popes, who climed to be feodal lords of the church, to claim in like manner from every clergyman in England the firft year's profits of his benefice, by way of primitiae, or firft fruits.
4. THESE payments were only due if the heir was of full age; but if he was under the age of twenty one, being a male, or fourteen, being a female
b , the lord was intitled to the ward-fhip of the heir, and was called the guardian in chivalry. This wardfhip confifted in having the cuftody of the body and lands of fuch heir, without any account of he profits, till the age of twenty one in males, and fixteen in females. For the law fuppofed the heir-male unable to perform knight-fervice till twenty one; but as for the female, fhe was fuppofed capable at fourteen to marry, and then her hufband might perform the fervice. The lord therefore had no wardfhip, if at the death of the aceftor the heirmale was of the full age of twenty one, or the heir- female of fourteen : yet, if fhe was then under fourteen, and the lord once had her in ward, he might keep her fo till fixteen, by virtue of the ftatute of Weftm. 1. 3Edw.1.c.22. the two additional years being given by the legiflature for no other reafon but merely to benefit the lord
h.
THIS wardfhip, of far as it related to land, though it was not nor could be part of the low of feuds, fo long as they were arbitrary, temporary, or for life only; yet, when they became hereditary, and did confequently often defcend upon infants, who by reafon of their age could neither perform nor ftipulate for the fervices of the feud, does not feem upon feodal principles to have been unreafonable. For the wardfhip of the land, or cuftody of the feud, was retained by the lord, that he might out of the profits thereof provide a fit perfon to fupply the infants's fervices,
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fStaundf. Prerog.12.
h 1bid.
b Litt. §.103.
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I 2
till
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Till he fhould be of age to perform them himfelf. And, if we confider a feud in it's original import, as a ftipend, fee, or reward for actual fervice, it could not be thought hard that the lord fhould withhold the ftipend, to long as the fervice fufpended. Though undoubtedly to our Englifh anceftors, where fuch ftipendiary do- nation was mere fuppotition or figment, it carried abundance of hardfhip; and accordingly it was relieved by the charter of Henry I before- mentioned, which took this cuftody from the lord, and ordained that the cuftody, both of the land and the children, fhould belong to the widow or next of kin. But this noble immunity din not continue many years.
THE wardfhip of the body was a confequence of he wardfhip of the land; for he who enjoyed the infant's eftate was the propereft perfon to educate and maintain him in his infancy : and alfo, in a political view, the lord was moft concerned to give his tenant a fuitable education, in order to qualify him the better to perform thofe fervices which in his maturity he was bound to render.
WHEN the male heir arrived to the age of twenty one, or the heir-female to that of fixteen, they might fue out their livery or oufterlemain
I ; that is, the delivery of their lands out their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profits of the land; though this feems experffly contrary to magna carta
k. However, in confideration of their lands having been fo long in ward, they were excufed all reliefs, and the king's tenants alfo all primer feifins
i. In order to afcertain the profits that arofe to the crown by thefe fruits of tenure, and to grant the heir his livery, the itinerant juftices, or juftices in eyre, had it formerly in charge to make inquifition concerning them by a jury of the county
m, commonly called an inquifitio poft mortem; which was inftituted to enquire ( at the death of any man of fortune) the value of his eftate, the tenure by which it
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I Co. Litt.77.
j Co.Litte. 77.
k 9 Hen.III. c. 3.
m Hoveden. Fub Ric. I.
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Was holden, and who, and of what age, his heir was; thereby to afcertain the relief and value of the primer feifin, or the wardfhip and livery accruing to the king thereupon. A manner of proceeding that came in procefs of time to be greatly abufed, and at length an intolerable grivance ; it being one of the principal accufations againft Empfon and Dudley, the wicked engines of Henry VII, that by colour of falfe inquifitions they compelled many perfons to fue out livery from the crown, who by no means were tenants thereunto
n. And, afterwards, a court of wards and liveries was erected
o, for conducting the fame enquiries in amore folemn and legal manner.
When the heir thus came of full age, provided he held a knight's fee, he was to receive the order of knighthood, and was compellable to take it upon him, or elfe pay a fine to the king. For, in thofe heroical times, no perfon was qualified for deeds of arms and chivalry who had not received this order, which was conferred with much preparation and folemnity. We may plainly difcover the footfteps of a fimilar cuftom in what Tacitus relates of the Germans, who in order to qualify their young men to bear arms, prefented them in a full affembly with a fhield and lance; which ceremony, as was formerly hinted
p, is fuppofed to have been the original of the feodal knighthood
q . This prerogative, of compelling the vafals to be knighted, or to pay a fine, was expreffly recognized in parliament, by the ftatute de militibus, I Edw. II ; was exerted as an expedient of raifing money by many of our beft princes, particularly by Edward VI and queen Elizabeth : but yet was the occafion of heavy murmurs when exerted by Charles I : among whofe many misfortunes it was, that neither himfelf nor his people feemed able to diftinguifh between the arbitrary ftretch, and the legal exertion, of prerogative. However,
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n 4 Inft . 198.
o Stat. 32 Hen. VIII. C.46.
p Vol. I. Pag.392.
q “ In ipfo concilio vel principum aliquis, “ vel pater, vel propinquus, feuto frameaque
“ juvenem ornant. Haec apud illos toga, hic “ primus juventae honos : aute hoc domuspars “ videntur ; mox reipublicae” ae mor. Germ.
Cap.13.
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Among the other conceffions made by that unhappy prince, before the fatal recourfe to arms, he agreed to diveft himfelf of this undoubted flower of his crown, and it was accordingly abolifhed by ftatute 16 Car.I.c.20.
5. But, before they came of age, there was ftill another piece of authority, which the guardian was at liberty to exercife over his infant wards; I mean the right of marriage, ( maritagium, as contradiftinguifhed from matrimonium) which in it's feodal fenfe fignifies the power, which the lord or guardian in chivalry had of difpofing of his infant ward in matrimony. For, while the infant was in ward, the guardian had the power of tendering him or her a fuitable match, without difparagement, or inequality: which if the infants refufed, they forfeited the value of the marriage, valorem maritagii, to their guardian
r ; that is, fo much as a jury would affefs, or any one would bona fide give to the guardian for fuch an alliance
s : and, if the infants married themfelves without the guardian's confent, they forfeited double the value, duplicem valorem maritagii
t . This feems to have been of the greateft hardfhips of our antient tenures. There are indeed fubftantial reafons why the lord fhould have the reftraint and control of the ward's marriage, efpecially of his female ward; becaufe of their tender years, and the danger of fuch female ward's intermarrying with the lord's enemy
u . But no tolerable pretence could be affigned why the lord fhould have the fale, or value, of the marriage. Nor indeed is this claim of ftrictly feodal original; the moft probable account of it feeming to be this : that by the cuftom of Normandy the lord's confent was neceffary to the marriage of his female- wards
w ; which was introduced into England, together with the reft of the Norman doctrine of feuds: and it is likely that the lords ufually took money for fuch their confent, fince in the often- cited charter of Henry the firft, he engages for the future to take nothing for his confent; which alfo he promifes in general to give, provided fuch
. {FS}
rLitt. . §. 110.
s Stat. Mert. C. 6. Co. Litt. 82.
u Litt. §. 110.
u Bract. 1.2. c .37. §.6.
w Gr.Cuft. 55.
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female ward were not married to his enemy. But this, among other beneficial parts of that charter, being difregarded, and guardians ftill continuing to difpofe of their wards in a very arbitrary unequal manner, it was provided by king John's great charter, that heirs fhould be married without difparagement, the next of kin having previous notice of the contract x ; or, as it was expreffed in the firft draught of that charter, ita maritentur ne dif-paragentur, et per confilum propinquorum de confanguinitate fua y. But thefe claufes in behalf of the relations were omitted in the charter of Henry III ; wherein z the claufes ftands merely thus, “haeredes maritentur abfque difparagatione ;” meaning certainly, by found of the lord's claiming the marriage of heirs male; and as Glanvil aexpreffly confines it to heirs female . But the king and his great lords thenceforward took a handle from the ambiguity of this expreffion to claim them both, five fit mafculus five foe mina, as Bracton more than once expreffes it b ; and alfo, as nothing but disparagement was reftrained by magna carta, they thought themfelves at liberty to make all other advantages that they could c . And afterwards this right, of felling the ward in marriage or elfe receiving the price or value of it, was expreffly declared by the ftatute of Merton d ; which is the firft direct mention of it that I have met with, in our own or in any other law.
6. ANOTHER attendant or confequence of tenure by knight-fervice was that of fines due to the lord for every alienation, whenever the tenant had occafion to make over his land to another. This depended on the nature of the feodal connexion ; it not being reafonable nor allowed, as we have before feen, that a feudatory fhould transfer his lord's gift to another, and fubftitute a new tenant to do the fervice in his own ftead, without the confent of the lord: and, as the feodal obligation was confidered as
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x cap.6.edit.Oxon.
y cap. 3. ibid.
z cap.6.
a 1.2.c.38 . §.1.
c Wright. 97.
d 20 Hen.III.c.6
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reciprocal, the lord alfo could not alienate his feignory without the confent of his tenant, which confent of his was called an attornment. This reftraint upon the lords foon wore away ; that upon the tenants continued longer. For, when every thing came in procefs of time to be bought and fold, the lords would not grant a licence to their tenants to aliene, without a fine being paid, apprehending that, if it was reafonable for the heir to pay a fine or relief on the renovation of his paternal eftate, it was much more reafonable that a ftranger fhould make the fame acknowlegement on his admiffion to a newly purchafed feud. With us in England, thefe fines feem only to have been exacted from the king's tenants in capite, who were never able to aliene without a licence : but, as to common perfons, they were at liberty, by magna carta e , and the ftatute of quia emptores f, ( if not earlier) to aliene the whole of their eftate, to be holden of he fame lord, as they temfelves held it of before. But the king's tenants in capite, not being included under the general words of thefe ftatutes, could not aliene without a licence : for if they did, it was in antient ftrictnefs an abfolute forfeiture of the lands g ; though fome have imagined otherwife. But this feverity was mitigated by the ftatute I Edw.III.c.12. which ordained, that in fuch café the lands fhould not be forfeited, but a reafonable fine be paid to the king. Upon which ftatute it was fettled, that one third of the yearly value fhould be paid for a licence of alienation; but, if the tenant perfumed to aliene without a licence, a full year's value fhould be paid h.
7. THE laft confequence of tenure in chivalry was efcheat; which is the determination of the tenure, or diffolution of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means: if he died without heirs of his blood, or if his blood was corrupted and ftained by commiffion of treafon or felony; whereby every inheritable quality was intirely blotted out and abolifhed. In fuch
. { FS}
e cap. 32.
f 18 Edw. I. c. I
g 2 Inft. 66
h Ibid. 67.
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cafes
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cafes the land efcheated, or fell back, to the lord of the fee i ; that is, the tenure was determined by breach of the original condition, expreffed or implied in the feodal donation. In the one café, there no heirs fubfifting of the blood of the firft feudatory or purchafer, to which heirs alone the grant of the feud extended: in the other, the tenant, by perpetrating an atrocious crime, fhewed that he was no longer to be trufted as a vafal, having forgotten his duty as a fubject; and therefore forfeited his feud, which he held under the implied condition that he fhould not be traitor or a felon. The confequence of which in both cafes was, that the gift, being determined, refulted back to the lord who gave it k.
THESE were the principal qualities, fruits, and confequences of the tenure by knight-fervice : a tenure, by which the greateft part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of he laft century; and which was created, as fir Edward Coke expreffly teftifies I, for a military purpofe ; viz. for defence of he realm by the king's own principal fubjects. Which was judged to be much better than to truft to hirelings or foreigners. The defcription here given is that of knight-fervice proper; which was to attend the king in his wars. There were alfo fome other fpecies of knight-fervice ; of called, though improperly, becaufe the fervice or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-fervice proper, and becaufe they were attended with fimilar fruits and confequences. Such was the tenure by grand ferjeanty, per magnum fervitium, whereby the tenant was bound, inftead of ferving t he king generally in wars, to do fome fpecial honorary fervice to the king in perfon ; as to carry his banner, his fword, or the like ; or to be his butler, champion, or other officer at his coronation m. It was in moft other refpects like knight-fervice n; only he was
. { FS}
I Co. Litt.13.
k Feud.1.2.t.86.
l 4 Inft.192.
m Litt. §. 153.
n Ibid. §.158.
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K
not
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not bound to pay aid
o , or efcuage
p; and , when tenant by knight-fervice paid five pounds for a relief on every knight's fee, tenant by grand ferjeanty paid one year's value of his land, were it much or little
q. Tenure by cornage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king's fubjects, was (like other fervices of the fame nature) a fpecies of grand ferjeanty
r.
THESE fervices, both of chivalry and grand ferjeanty, were all perfonal, and uncertain as to their quantity or duration. But the perfonal attendance in knight-fervice growing troublefome and inconvenient in many refects, the tenants found means of compounding for it; by firft fending others in their ftead, and in procefs of time making a pecuniary fatisfaction to the lords in lieu of it. This pecuniary fatisfaction at laft came to be levied by affeffments, at fo much for every knight's fee; and therefore this king of tenure was called fcutagium in Latin, or fervitium fcuti ; fcutum being then a well-known denomination of money: and, in like manner it was called, in our Norman Fernch, efcuage; being indeed a pecuniary, inftead of a military, fervice. The firft time this appears to have been taken was in the 5 Hen. II. on account of his expedition to Touloufe ; but it foon came to be fo univerfal, that perfonal attendance fell quite into difufe. Hence we find in our antient hiftories that, from this period, when our kings went to war, they levied fcutages on their tenants, that is, on all the Indholders of the kingdom, to defray their expenfes, and to hire troops: and thefe affeffments, in the time of Henry II, feem to have been made arbitrarily and at the king's pleafure. Which prerogative being greatly abufed by his fucceffors, it became matter of national clamour, and king John was obliged to confent, by his magna carta, that no fcutage fhould be impofed without confent of parliament
s. But this claufe was omitted in his fon Henry II's charter; where we only find
t, that
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o 2 Inft.233.
p Litt. § .158.
q Litt. §.154.
r Ibid. §.156.
s Nullum fcutagium ponatur in regno noftro, nifs per commune confilium regni noftri. Cap.12.
t cap.37.
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feutages
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fceutages or efcuage fhould be taken as they were ufed to be taken tin the time of Henry II; that is, in a reafonable and moderate manner. Yet afterwards by ftatute 25 Edw.I.c.5&6. and many fubfequent ftatutes
u it was enacted, that the king fhould take no aids or tafks but by the common affent of the realm. Hence it is held in our old books, that efcuage or fcutage could not be levied but by confent of parliament
w; fuch fcutages being indeed the groundwork of all fucceeding fubfidies, and the land- tax of later times.
SINCE therefore efcuage differed from knight-fervice in nothing, but as compenfation differs from actual fervice, knight fervice is frequently confounded with it. And thus Littleton
x muft be underftood, when he tell us, that tenant by homage, fealty, and efcuage was tenant by knight- fervice : that is, that this tenure (being fubfervient to the military policy of the nation) was refpected
y as a tenure in chivalry
z. But as the actual fervice was uncertain, and depended upon emergences, fo it was neceffary that this pecuniary compenfation fhould be equally uncertain, and depend on the affeffments of he legiflature fuited to thofe emergences. For had the efcuage been a fettled invariable fum, payable at certain times, it had been neither more nor lefs that a mere pecuniary rent; and the tenure, inftead of knight fervice, would have then been of another kind, called focage
a, of which we fhall fpeak in the next chapter.
FOR the prefent, I have only to obferve, that by the degenerating of knight-fervice, or perfonal military duty, into efcuage, or pecuniary affeffments, all the advantages (either promifed or real) of the feodal conftitution were deftroyed, and nothing but the hardfhips remained. Inftead of forming a national militia compofed of barons, knights, and gentlemen, bound by their intereft, their honour, and their oaths, to defend their king and
.{FS}
See Vol.I.pag.136.
w Old Ten. Tit. Efcuage.
x§. 103.
y Wrighy.122.
z Pro feodo militari reputatur. Flet.1.2.
c.14. §.7.
a Litt. §. 97.120.
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K2
Country,
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country, the whole of this fyftem of tenures now tended to nothing elfe, but wretched means of raifing money to pay an army of occafional mercenaries. In the mean time the families of all our nobility and gentry groaned under the intolerable burthens, which ( in confequence of the fiction adopted after the conqueft) were introduced and laid upon them by the fubtlety and fineffe of the Norman lawyers. For, befides the fcutages they were affeffed by themfelves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldeft fon was to be knighted, or his eldeft daughter married; not to forget the ranfom of his own perfon. The heir, on the death of his anceftor, if of full age, was plundered of the firft emoluments arifing from his inheritance, by way of relief and primer feifin; and, if under age, of the whole of his eftate during infancy. And then, as fir Thomas Smith
b very feelingly complains. “when “he came to his own, after he was out of wardfhip, his woods “decayed, houfes fallen down, ftock wafted and gone, lands let “forth and ploughed to be barren,” to make amend he was yet to pay half a year's profits as a fine for fuing out his livery; and alfo the price or value of his marriage, if he refufed fuch wife as his lord and guardian had bartered for, and impofed upon him; or twice that value, if he married another woman. Add to this, the untimely and expenfive honour of knighthood, to make his poverty more completely fplendid. And when by thefe deductions his fortune was fo fhattered and ruined, that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation.
ASLAVERY fo complicated, and fo extenfive as this, called aloud for a remedy in a nation that boafted of her freedom. Palliatives were from time to time applied by fucceffive acts of parliament, which affwaged fome temporary grievances. Till at length the humanity of king James I confented
c for a proper
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b Commonw.1. 3. c. 5.
c 4 Inft. 202.
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equivalent
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equivalent to abolifh them all; though the plan then proceeded not to effect : in like manner as he had formed a fcheme, and began to put it in execution, for removing the feodal grievance of heretable jurifdictions in Scotland
d, which has fince been purfued and effected by the ftatute 20 Geo.II.c.43.
e King James's plan for exchanging our military tenures feems to have been nearly the fame as that which has been fince purfued ; only with this difference, that, by way of compenfation forthe lofs which the crown and other lords would fuftain, an annual feefarm rent fhould be fettled and infeparably annexed to the crown, and affured to the inferior lords, payable out of every knight's within their refpective fignories. An expedient, feemingly much better than the hereditary excife, which was afterwards made the principal equivalent for thefe conceffions. For at length the military tenures, with all their heavy appendages, were deftroyed at one blow by the ftatute12 Car.II.c.24.which enacts, “that the court of “wards and liveries, and all wardfhips, liveries, primer feifins, “ and oufterlemains, values and forfeitures of marriages, by rea-“ fon of any tenure of the king or others, be totally taken away, “ And that all fines for alienations, tenures by homage, knights- “ fervice, and efcuage, and alfo aids for marrying the daughter “ or knighting the fon, and all tenures of he king in capite, be “ likewife taken away. And that all forts of tenures, held of the “ king or others, be turned into free and common focage; fave “ only tenures in frankalmoign, copyholds, and the honorary fer-“vices ( without the flavifh part) of grand ferjeanty.” A ftatute, which was a greater acquifition to the civil property of this kingdom than even magna carta itfelf: fince that only pruned the luxuriances that had grown out of the military tenures, and thereby preferved them in vigour ; but the ftatute of king Charles extirpated the whole, alnd demolifhed both root and branches.
.{FS}
d Dalrymp of feuds.292.
e
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